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Boone v. Heyns

United States District Court, E.D. Michigan, Southern Division

September 11, 2017

Richard Boone, II, Plaintiff,
Daniel Heyns, et al., Defendant.

          Mona K. Majzoub U.S. Magistrate Judge.


          Arthur J. Tarnow Senior United States District Judge.

         Plaintiff filed his initial complaint on September 14, 2012, alleging violations of the Eighth Amendment and 42 U.S.C. §1983. At the time of his filing, Plaintiff was incarcerated at G. Robert Cotton Correctional Facility (JCF) in Jackson, Michigan, and is currently incarcerated at the Carson City Correctional Facility (DRF). Plaintiff filed an Amended Complaint [196] on July 23, 2013.

         Defendants Corizon, Miles, Squier, Lybarger, Oullette, and Bommershine filed a Motion to Dismiss Counts III-VIII on July 22, 2016 [218]. Plaintiff responded on August 4, 2016 [221], and Defendants replied [226] on August 12, 2016. Defendants Heyns, Stieve, Hunter, Beals, Upston, Weiss, Couling, Wilson, Rohrig, Kinder, and Borgerding filed a Motion to Dismiss [234] on August 26, 2016. Plaintiff responded [240] on September 16, 2016, and Defendants replied [242] on October 17, 2017. Defendants Couling and Wilson filed a Motion to Dismiss [225] on August 11, 2016. Plaintiff responded [232] on August 25, 2016, and Defendants replied [237] on September 12, 2016. Plaintiff filed a supplemental response [241] to Defendant's Couling and Wilson's Motion to Dismiss on October 2, 2016.

         Defendants Corizon, Miles, Squier, Lybarger, Oullette, and Bommershine filed a Motion for HIPAA Disclosure Order [220] on August 4, 2016. Plaintiff responded on August 15, 2016 [227], and Defendants replied [231] on August 24, 2016. Plaintiff filed a Motion for a Temporary Restraining Order [250] on February 7, 2017. Defendants filed responses [252; 253] on February 21, 2017. Plaintiff filed a second Motion for Leave to Amend and Supplement the Complaint pro se [261] on March 23, 2017. On March 31, 2017, Plaintiff also filed a Motion to Show Cause why the MDOC and Corizon Defendants and/or their Agents should not be held in contempt of Court pro se [264] and a Motion to Strike Corizon Defendants' Response, Docket Number 253 [266].[1]

         The Court finds the motion suitable for determination without a hearing with respect to all of Plaintiff's claims, in accord with Local Rule 7.1(f)(2). For the reasons stated below, Defendants' Motions to Dismiss [218; 225; 234] are GRANTED. Defendants Corizon, Miles, Squier, Lybarger, Oullette, and Bommershine's Motion for HIPAA Disclosure Order [220] is DENIED.

         Plaintiff's Motion to Amend Complaint [261] is DENIED without prejudice. Plaintiff may refile a Motion to Amend that complies with local rule 15.1, and that comports with the findings of this order as described below. Plaintiff's Motion to Show Cause why Defendants should not be held in contempt of Court [264] and Motion for a Temporary Restraining Order [250] are DENIED.

         Statement of Facts

         Plaintiff's claims arose while he was confined at the Michigan Department of Corrections Reception and Guidance Center (RGC), and the G. Robert Cotton Correction Facility (JCF). At RGC on May 13, 2008, Plaintiff had a special accommodation notice (SAN) issued without a stop date for, inter alia, an air mattress. On March 3, 2012, Plaintiff alleges that he was called to medical at JCF to exchange his air mattress because his had a hole in it, causing him pain in his hips. However, when he arrived, he was met by a Defendant Beals, who allegedly informed Plaintiff that she would not order any more air mattresses, and that they were not going to hand out any more air mattresses in the future.

         Plaintiff alleges that his SAN for the air mattress, which previously had no stop date issued, had a stop date issued that day, despite the fact that Plaintiff alleges he had not seen a medical practitioner prior to this who ordered this stop date, in violation of MDOC Policy Directive 04.06.160. Plaintiff wrote several letters to Defendant agents of the MDOC, and filed grievances over the next few months about the situation, all of which were denied. Plaintiff alleges that the denial of his air mattress has caused him constant pain and sleep deprivation. His complaint also incorporates claims based upon the treatment he received for his other serious medical issues, that include sleep apnea, the removal of hardware from his left knee, a left knee brace accommodation, right foot palsy and kidney stones.

         Plaintiff is seeking relief from eighteen Defendants, including, inter alia, agents of the MDOC, the Medical Contractor company CORIZON, that has contracted with the State of Michigan to provide health care to inmates, and employees of CORIZON. Plaintiff's claims are the following: violations of the Eighth Amendment, due to prison conditions constituting “cruel and unusual punishment” and policy/custom/practice that deliberately denied and/or delayed Plaintiff's access to required medical care; violations of due process and equal protection under the Fourteenth Amendment; retaliation under the First Amendment; civil conspiracy; intentional infliction of emotional distress; totality of the conditions; and negligence and/or medical malpractice.

         1. Defendants Corizon, Miles, Squier, Lybarger, Oullette, and Bommershine Motions to Dismiss Counts III-VIII [218]

         Legal Standard

         Defendants move to dismiss Counts III-VIII of Plaintiff's amended complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). On a Rule 12(b)(6) motion to dismiss, the Court must “assume the veracity of [the plaintiff's] well-pleaded factual allegations and determine whether the plaintiff is entitled to legal relief as a matter of law.” McCormick v. Miami Univ., 693 F.3d 654, 658 (6th Cir. 2012) (citing Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009); Mayer v. Mylod, 988 F.2d 635, 638 (6th Cir. 1993)).

         a. Count III: Due Process and Equal Protection Claims under the 14th Amendment

         i. Due Process

         Plaintiff brings a claim of violation of due process concerning the removal of Plaintiff's CPAP machine and air mattress. Defendants challenge this claim on the basis that the remedy for a prisoner's §1983 deliberate indifference to serious medical needs is found in the Eighth Amendment, while a pretrial detainee may find relief in the Fourteenth Amendment Due Process clause. Phillips v. Roane County, 534 F.3d 531 (6th Cir. 2008). Plaintiff contends that this misrepresents the state of the law, and that under Sandin v. Conner, 515 U.S. 472, 484 (1995), the Court must ask if the Plaintiff has alleged that Defendants' actions imposed an atypical and significant hardship in relation to the ordinary incidents of prison life. See also Jennings v. Bradley, 419 F. App'x 594, 597 (6th Cir. 2011).

         Plaintiff's position does not address the argument presented by Defendants. It is clear that Plaintiff's due process claim relates to an alleged claim of deliberate indifference to serious medical needs. In the Sixth Circuit, the Eighth Amendment's prohibition on cruel and unusual punishment provides the basis for a §1983 claim of deliberate indifference to serious medical needs for a prisoner, while the due process clause protects pretrial detainees. See e.g. Carl v. Muskegon Cty., 763 F.3d 592, 595 (6th Cir. 2014); Stefan v. Olson, 497 F.App'x 568, 576 (6th Cir. 2012).

         Significantly, the case that Plaintiff cites from the Sixth Circuit to support his argument did not reflect a due process claim for deliberate indifference to medical needs, but rather concerned liberty interests in a challenge to placement in a Cell Slot Management program as an atypical and significant hardship, and is therefore not persuasive in this case. Jennings v. Bradley, 419 F.App'x 594, 597 (6th Cir. 2011). In Count I Plaintiff has already alleged an Eighth Amendment violation under the cruel and unusual punishment theory relating to his medical care, including denying him access to his CPAP and air mattress. The relief is properly sought under the Eighth Amendment rather than the Fourteenth Due Process, and therefore Plaintiff's Fourteenth Amendment Due Process claim is dismissed as to all Defendants.

         ii. Equal Protection

         In Count III, Plaintiff alleges that the intentional and deliberate deprivation of his air mattress, while other similarly situated individuals were allowed an air mattress, violated his rights under the Equal Protection Clause of the Fourteenth Amendment. “The Equal Protection Clause prohibits discrimination by government which burdens a fundamental right, targets a suspect class, or intentionally treats one differently than others similarly situated without any rational basis for the difference.” Bench Billboard Co. v. City of Toledo, 499 F.App'x 538, 547 (6th Cir. 2012).

         It is undisputed that Plaintiff is not a member of a protected class; therefore, for his claim to survive, it must be prevail under a class of one theory. To successfully plead an equal protection claim as a class of one, Plaintiff must allege that “[he] and other individuals who were treated differently were similarly situated in all material respects.” Id. Additionally, Plaintiff must show that the governmental entity “treated them differently without rational basis.” TriHealth, Inc. v. Bd. of Comm'rs, Hamilton Cty., Ohio, 430 F.3d 783, 788 (6th Cir. 2005).

         Plaintiff alleges that he has met this standard by, inter alia, providing an affidavit from a fellow prisoner who still has his air mattress. Plaintiff has not done this in the complaint. To factually plead that a similarly situated individual was treated differently, Plaintiff relies upon exhibits to his complaint, constituting an affidavit from a fellow prisoner who was allowed to have an air mattress was diagnosed with cancer. [2 at Pg ID 129]. Plaintiff is a person who underwent hip surgery, while the Affiant is a cancer patient- these two are not similarly situated with respect to their need of an air mattress for medical reasons. Therefore, Plaintiff has not pled facts to support an equal protection claim and this count is dismissed as to all Defendants.

         b. Count IV: First Amendment Retaliation as against Defendant Miles

         Plaintiff alleges, as to Defendant Miles, that he:

intentionally delay[d], den[ied], and or refuse[d] to treat Plaintiff's medical needs in retaliation of Plaintiff's protective conduct, redress of grievance guaranteed by the [First Amendment], while leaving Plaintiff in an ‘unnecessary and wanton infliction' of physical, mental, and emotional pain and suffering and depriving Plaintiff of sleep.

         [196 at ¶70]. Defendant seeks dismissal of the claim because, inter alia, it is undisputed that Defendant Miles did continue to provide medical treatment to Plaintiff after he filed grievances, and it is also undisputed that the alleged medical deprivation began before any grievances were filed, and therefore there is no casual connection.

         “A retaliation claim essentially entails three elements: (1) the plaintiff engaged in protected conduct; (2) an adverse action was taken against the plaintiff that would deter a person of ordinary firmness from continuing to engage in that conduct; and (3) there is a causal connection between elements one and two-that is, the adverse action was motivated at least in part by the plaintiff's protected conduct.” Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th Cir. 1999) (en banc).

         In this case, there is no factual allegation addressing causation. Plaintiff filed his first grievance against Defendant Miles on July 4, 2011 [1 at ¶74-78]. However, the complaint alleges that he was deprived of medical care commencing on June 17, 2011, when Defendant Miles allegedly refused to look at Plaintiff's medical documentation concerning his need for removal of hardware from his knee, a knee brace, an AFO brace and CPAP machine. [1 at ¶¶74-75]. Plaintiff also alleges that, on June 30, 2011, he learned that, while Defendant Miles told him at that June 17, 2011 meeting that he would refer Plaintiff to physical therapy and take other action concerning his medical complaints, nothing was done for his health care. [1 at ¶¶76-77]. It was this initial alleged deprivation of medical care that caused Plaintiff to file his first grievance against Defendant Miles on July 4, 2011. [1 at ¶78].

         Further, it is undisputed that Defendant Miles did continue to provide medical care to Plaintiff following his filing of several grievances against him. Defendant Miles provided Plaintiff with Vicodin for kidney stone pain, requested a referral to a urologist, referral to a respiratory therapist, wrote an order for an AFO, and submitted a request for hardware removal [1 at ¶¶93, 94, 112, 114, 121, 137, 145]. The fact that Plaintiff alleges that the denial/refusal of treatment began before the grievances were filed, coupled with the fact that he continued to receive treatment and referrals for further medical care by Defendant Miles after the filing of the grievances, does not support a retaliation claim because there is no causation pled in the complaint. These allegations surround a seeming disagreement over the treatment, and allegations of deliberate indifference over ...

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